The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-09-06

t1AETtOhD Il IKE INSURANCE COMPANY.
HARTFoRD. CONNECTICUT, DEFENDANT
Exceptions from ratings Of McCULLY
Judge.
BEFORE JUDD, c. j., M'CULLY, PRESTON, AND
BIcKERToN, il.
Opinion Of the Court by PRESTON j.
This case comes before us on a bill
of exceptions by the plaintiff, to the
rulings of McCully Judge, at the trial
of the action at the last April term,
whereby he allowed the defendant to
amend the answer upon terms and di
rected a nonsuit on the motion of de-
fendant's counsel at the conclusion of
the plaintiffs case.
The amendments allowed by the
learned Judge were within his discre-
ton, and cannot be considered here.
The bill of exceptions in this re
spect is therefore overruled.
The action is brought to recover
the sum of $500, upon a Fire Policy
assuring that amount upon certain
stock in trade of the plaintiffs, upon
his store and premises in Fort street,
Honolulu.
The policy is dated the 18th day of
August, 1885, and contains the follow
ing stipulation: "Or if any change
takes place in the title or possession
of the property, whether by sale,
transfer, conveyance, legal process,
judicial decree, = or if the
assured is not the sole, absolute and
i, unconditional owner of the property
insured, * then, and in every
such case, this policy shall be void"
This policy is made and accepted
on the above express conditions"
On the fourth day of August, 1856,
during the currency of the policy, the
property covered by it, was destroyed
by fire.
There were assurances in three other
offices, in like amount and the several
companies refused payment.
At the trial the plaintiff was called
as a witness on his own behalf, and on
cross examination was shown paper.
Hereinafter set QUIT and stated; Il
remember giving Mr.. Neumann a
guarantee for my bonds, to assure
people who had been guarantee for
me-that is my signature, did not read
paper. signed it at Mr.. Neumann's re
quest-knew it was only a guarantee
to be given to Mr. Davis and Mr.
Bowler-did not know it sold abso-
lutely, store and goods gave 1t to
Mr.. Neumann, not to Whiting I gave
it as guarantee merely"
Wr. Whiting testified that the bill
of sale was made at the instance of
Mr.. Neumann to secure his (Whiting's)
client, Bowler, who was on Michiel's
bond and also on his Chinese clerks
bond, on a charge of having opium in
possession, and was delivered to him
to hold until after the cases were de
cided-that he paid no consideration
for it-took no possession, and that he
, held the paper merely as security for
Bowler and bondsmen, and that it was
not to be used or put into effect I'M
less AIichiels made default, and that
there was no intention to transfer the
property.
The plaintiff, having introduced
other testimony as to value, etc, rested
his case.
Counsel for defendant thereupon
moved for a nonsuit, because of the
execution of said bill of sale, on the
ground that it was violation of the
terms of the policy, and the Court al
lowed the motion, and ordered the
plaintiff to be nonsuited.
To which order the plaintiff ex
cepted.
The following is copy of the bill
of sale: Know all men by these pres
ents. that l, Charles Michiels, of Ho-
nolulu, Island of Oahu, for and in
consideration Of the sum of one dollar,
to me in hand paid, the receipt whereof
is hereby acknowledged, and for other
good and valuable considerations, me
thereto moving, from W. A. Whiting,
of the same place, have bargained and
sold, and by these presents, do grant
and convey unto the said W. A. Whit
ing. his executors, administrators and
assigns, all the merchandise, fixtures,
good will and outstanding accounts
due. belonging to, and part of my
business in Honolulu, carried on on
Fort street. near Merchant street.
known as the Louvre of Brussels"
To have and to hold. unto the said w.
A. Whiting, his executors, admins
traitors and assigns forever. And in
consideration of the premises, l hereby
covenant with and unto the vendee,
that l will warrant and defend the sale
! hereby made, against any and all per
: sons lawfully claiming, or to claim
the chattels hereby sold. In witness
whereof 1 have hereunto set my hand
and seal, the second day of August,
AID, 1886"
ca. MIcHIELs. LIS.
On the argument before us, it was
strenuously contended on behalf of
the plaintiff, that no change in the
title or property passed or was effected
by the bill of sale, and that it was only
a mortgage, or security to the plain